ANTI-CONVERSION LAW: FREEDOM OF RELIGION OR VIOLATION OF SECULARISM?

Remember iconic Bollywood actor Dharmendra adopting another religion to remarry? The question that arises is that, the way Dharmendra, in 1979 adopted Islam religion for his second marriage, is it that even possible in present times to convert to another religion? An attempt to answer this question can be made by tracing the journey of Anti-Conversion Laws in India and the recent ordinances passed by the Uttar Pradesh and the Madhya Pradesh Government.

What does anti-conversion law mean? Does it mean that one cannot change his or her religion? The answer is NO! Anti-conversion law does not en bloc (prohibit) religious conversion but bans involuntary or forced conversions. Therefore, the objective of such a law is to punish those who impose undue influence or force others into adopting a religion or preventing them from converting to another religion. The concept of Anti-Conversion Laws is not alien to India, rather it has been in existence from a while.

Tale Of Anti-Conversion Laws In India

Anti-conversion laws were in place in the country during the independence phase which were introduced mainly by the Hindu princely states such as Gujarat, Gwalior, Hyderabad, Mysore etc. After independence similar laws were enacted but none were successful. Another important point regarding these laws aisthat earlier these Anti-Conversion Laws were mainly enacted for Hthe Hindu community, so Hindus arenot converted to any other religion. In India, during the British rule between 1930-1940, to prohibit religious conversions, Hindu princely states had adopted some Anti-Conversion Laws and these laws were mainly implemented to safeguard the identity of Hindus against the British Missionaries whose purpose was to promote their faith.

The first state to implement Anti-Conversion law was Odisha in 1967 i.e. Freedom of Religion Act 1967. This was followed by the state of Madhya Pradesh as Madhya Pradesh Dharma Swatantra Adhiniyam,1968. After a decade, in the year 1978, Anti-Conversion Laws were also enacted in the state of  Arunachal Pradesh. Later, Chhattisgarh in the year 2000 retained the Anti-Conversion Law of Madhya Pradesh. Gujarat in 2003 and Himachal Pradesh in 2006 enacted and implemented their own “Freedom of Religion Act”. Tamil Nadu also enacted the Tamil Nadu Prohibition of Forcible Conversion of Religion Act in 2002, but the purpose of the Act was not fulfilled, and later in 2004, the Act was repealed. Similarly, Jharkhand and Uttarakhand are the most recent states to implement Jharkhand Freedom of Religion Act, 2017 and Uttarakhand Freedom of Religion Act, 2018.

In India there are 8 states where anti-Conversion laws were already in force and now Uttar Pradesh has also joined the list as the state government of Uttar Pradesh has passed a recent ordinance to govern and regulate unlawful conversions.

U.P Anti-Conversion Law

Indian Constitution, under Article 245, divulges that the state governments can make separate classification if such classification has a reasonable nexus with the purpose of the law. So, what was the purpose of Anti-Conversion Law recently passed by the UP government? The core of the ordinance is “a profound opposition to inter-faith marriages” and “the need to place women and girls under protection from being coerced into forced conversions by marriage”.

On 24th November, 2020, the Uttar Pradesh (UP) Prohibition of Unlawful Conversion of Religion Ordinance, 2020 was passed by the state government, followed by the state Governor Anandiben Patel’s assent on 28th November, 2020. This was trailed by the Madhya Pradesh (MP) government proclaiming the Madhya Pradesh Freedom of Religion Ordinance, 2020, in January 2021. These Ordinances impose strict provisions to control and regulate religious conversions and forbid certain types of religious conversions (through marriages).

The MP Ordinance replaces the MP Dharma Swatantra Adhiniyam 1968, which was enacted to rregulate religious conversions Few other states, including Haryana and Karnataka, are likewise to introduce a related law.

Anti-Conversion law passed by the U.P state government restricts conversion from one religion to another due to “misrepresentation, force, fraud, undue influence, coercion, allurement or marriage”. The foremost objective of the law is to check “unlawful religious conversion” and “interfaith marriages in which the intention is that of changing a girl’s religion”. The law renders such conversion as a criminal offence and prescribes punishment under Section 5 which states that any individual held guilty for unlawful conversions will be liable for imprisonment for a term not less than 1 year and not less than 2 years in case of unlawfully converting a minor, women or a person belonging to SC/ST community and it may extend up to 10 years. The offences of unlawful conversion defined in the ordinance are cognizable and non-bailable as per Section 7 of the Act.

Instances Which Led to The Need for Anti-Conversion Law 

In 20th century, Hindu women were being forcibly married to Muslims and converted to Islam. But the need for a law to regulate unlawful conversions emerged in 1927 when a rumour was spread in Muzaffarnagar district of U.P, that a Hindu woman was converted to Islam for the sake of marriage.

Christian Society in Kerala had also claimed that between 2006-2012, allegedly 447 Christian girls had been converted to Islam on the pretext of marriage. The news got emergence after a Christian girl who was converted to Islam was arrested for supplying SIM cards to Lashkar-e-Taiba which is a terrorist organization.

Nationwide Anti-Conversion Law

Now the point of discussion arises that why these Anti-Conversion Laws can not be implemented all over India? This is because according to Article 246 of the Indian Constitution read with Schedule VII the power to make law on this subject lies with the state government.

Considering the present situation, the central government, while supporting the Uttar Pradesh Anti-conversion Law, proposed implementing such a law on a national level. If the law is implemented on national level, will it not violate the principle of secularism enshrined in the preamble of the Constitution, which gives a freedom to the citizens under Article 25 to freely profess any religion of their conscience? Be it on a national level or state level, the principle of secularism will not be violated until the prima facie objective of such Act seems to be prevention of unlawful conversions. But as of now, the power lies with the State Government solely to enact or implement the Anti-Conversion Law in their state or not. Later, by its written reply, the Ministry of Home Affairs notified the Parliament that the centre has no plans to bring a nationwide Anti-Conversion Law.

Does Anti-Conversion Law Violate Freedom Of Religion ?

To option between freedom of religion and Anti-Conversion Law is a debatable question. Indian Constitution in its Part III guarantees certain freedom available to the citizens of the country. One such freedom is “Freedom to practice, profess and propagate any religion of own choice”. Even Article 18 of United Nations Universal Declaration of Human Rights has also declared to practice any religion and religious conversion as a human right. Therefore, the Freedom of religion has been widely misinterpreted and the judiciary has elucidated this delusion in its notable judgment.

Rev Stanislaus vs Madhya Pradesh & Ors on 17 January 1977 AIR 908

In this case, the Supreme Court held that Article 25 of the Indian Constitution deals with freedom of religion under which one can propagate religion freely subject to public order but this does not mean that there exists a right to convert other person’s religion to one’s own religion. You cannot induce or force any other person to convert. What is freedom for one is freedom for the other in equal measure and there can, therefore, be nothing of the sort of a fundamental right to convert any individual to one’s own religion.

Procedure For Religion Conversion Under Section 8 and Section 9 of U.P Ordinance

  • Once a person wishes to convert his religion, he has to provide 60 days prior notice to either district magistrate or additional district magistrate submitting his willingness to convert to another religion along with a declaration that he is converting without any undue influence.
  • On receiving such declarations, the DM is further required to direct a police enquiry to ensure that the conversion is free from coercion or inducement.
  • Then after this 60 days notice period, the magistrate will either grant you permission or will impose restrictions on conversions.
  • The converted person shall after conversion ceremony send a form of declaration as prescribed in schedule III of the Ordinance to the DM.
  • The DM is required to display a copy of the said declaration on the notice board of his office till the conversion is confirmed.
  • The converted person within 21 days from the conversion, shall appear before the DM to establish his identity and confirm the clauses of the declaration.

Analysis

Despite various contestations over the idea of similar laws, the law turned out to be a regressive one as it raises concerns about the privacy of individuals who wish to embrace other religions. Various experts have depicted the law as a violation of the fundamental right to practice any religion, including former Law Commission Chairman, Justice A. P. Shah and former Supreme Court judge Madan Lokur. Their analysis has largely focused on denying the right to freedom of religion and restricting women’s rights to choose their partner. Apart from that, 104 former bureaucrats have written to the Chief Minister of Uttar Pradesh, asking him to repeal the law.

After a discussion of more than 200 concerned nationals from Indian Judiciary, Police Services, Armed Forces and Academia, a letter in support of the U.P law against ‘unlawful conversion’ was also written to the CM. The rational was not to enact more laws but to bring into play the existing provisions if any unlawful conversion is reported.

Furthermore, within a month of UP Anti-Conversion Law being passed 8 FIRs were lodged for unlawful conversions, and a substantial number of persons have been arrested as per said law. Many PILs have been filed challenging the constitutional validity of the law. The UP govt. in the month of January has sought for transfer of all such PILs against the law to the Apex Court.

Whether the recent ordinance passed by the U.P government protects ones religion or is in violation of secularism, will only be seen with the passage of time.

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